Images fees and UK copyright law - a breakthrough

January 21 2024

What are image fees?

In the old days, if you wanted to publish a photo of a painting in a museum, you had to send off for a transparency. It was reasonable for museums to charge a fee to cover all the staff time of running an image library. When the internet came along, almost all museums continued to charge fees, even though it was soon possible for authors and publishers to simply download an image from a museum’s online collection site. In order to continue to charge fees, and prevent everyone downloading images from collection sites, museums relied on copyright law. So, museums said their photos of (say) a Leonardo had copyright, even though Leonardo had been dead for almost 500 years.

Sounds like a good business model for museums.

It was. Publishers, broadcasters and authors were so used to paying for ‘licences’ they routinely paid up, even if they had to pay through the nose. An average article - written for no remuneration - can easily cost £1,000 in image fees. In 2019, the art historian Prof. Kathryn Rudy calculated she was about £24,000 out of pocket in less than a decade of publishing articles and books, writing in THES; “the more I publish, the poorer I am.”

So why did some museums abolish fees?

First, some museums began to take a simultaneously commercial and enlightened view. Running a licensing system based on copyright law is expensive. Every transaction requires a contract, and each case is different. Then you get art historians asking for discounts, and someone has to deal with all these enquiries. Soon, some museums (like the National Gallery in Washington, the Rijksmuseum, and the Yale Center for British Art) found they were running their licensing departments at either a loss, or making no meaningful gain once all costs are taken into account. Moreover, they took the view that there was an ‘opportunity cost’ in restricting the use of images of works in their collection, limiting scholarship, outreach and audience development. Here in Apollo is a piece by then Rijksmuseum director Wim Pijbes explaining his decision to abolish fees in 2015.

Abolishing image fees has become known as ‘Open Access’. Simply, the more people could see what you had in your museum, the better for your museum – even if it meant allowing purely commercial merchandisers to use images for free. You might lose $500 from licensing your museum’s Rembrandt on a TV programme or a tea towel, but if the museum’s Rembrandt became better known, great. And in an online age, it made sense for museums to put the best images possible online, as easily shared as possible, so that everyone could enjoy Rembrandt’s amazing skills.

What did Open Access mean for those museums who continued to charge?

It wasn't good news. First, it would be harder for their licensing model to make a profit. Those TV programmes or tea towel makers could now easily find a free Rembrandt image to use. This meant, in turn, that the burden fell more and more on those who had no choice but to pay for images, that is, scholars and students. Anyone who really needed an image of an obscure David Cox watercolour, for example. 

But don’t museums allow academics and scholars to use images for free?

They say they do, but in practice it’s very difficult to qualify for what museums call ‘non-commercial’ use. For example, Tate will charge even to allow you to use one of their images in an academic lecture which is free to enter (the charge being £20). And the British Museum define ‘commercial’ as ‘Anything that is in itself charged for, including textbooks and academic books or journals.’ Since most academic journals have a cover price, that’s ‘commercial’. Even if you are a charity, the BM will charge you, saying; ‘If a charity or not-for-profit society sells products in order to carry out or support itself, the activity is commercial because the sales (as opposed to free distribution) of the products are 'primarily intended or directed toward a commercial advantage', even if the commercial advantage is in the public interest of supporting the charity.’

That’s quite mean. Aren’t museums supposed to operate for the public good?

Indeed.

What about those who can't physically get to museums?

The museum sector simply expects them to get by with lower resolution photos.

Sounds discriminatory. Can people just use their own photos? 

In theory, museums’ terms of entry prohibit this, though it’s hard to see how they could enforce them. Look on other image licensing sites like Alamy and you will find thousands of photos taken by people in museums. If a scholar wants to visit (say) the British Museum’s study room to look at some Roman intaglios, they have to sign a form promising not to publish your own photos. This is a way of forcing you to pay for the BM’s own photos. It’s why most PhDs uploaded online won’t have images in them, and instead have a box like this:

Who gains from that?

Nobody. Unless you are interested in stealing roman intaglios from the museum storeroom – the fewer photos in circulation, the easier it is. (Sorry, that's naughty of me, and an extremely rare case, though it was certainly a contributory factor).

Are some museums more generous than others with images?

Yes, in the UK the Royal Collection is probably the most generous in allowing genuinely free use for scholars. If the print run of a book is below 4,500, you get a free image. Of course, the Royal Collection has to employ staff to decide who gets a free image, so woe betide you if want to write a book for a wider audience, those images will cost a small fortune. 

Most museums are hard up, isn’t it right they raise what money they can?

Yes, museums are hard up. Whether stopping as wide an audience as possible from learning about what’s in their collections is a good way to stop any long term decline in visitor numbers and funding is a different question. For example, the collapse in schools teaching art history is not unconnected to the fact that publishing art history textbooks is prohibitively expensive. It’s like cricket taking a big money deal from Sky and moving away from free-to-air TV, only to find twenty years later that grassroots participation has declined.

Do any UK museums make money from licensing? 

Some do (or say they do). Mainly those with more modern and contemporary collections, like the V&A and Tate. Others lose money, and have done for years, like the National Gallery, National Museums Liverpool, the National Galleries of Scotland, and the Government Art Collection. A 2022 report by Dr Andrea Wallace on image licensing and commissioned by UK Research & Innovation [UKRI] concluded: “Licensing images of public domain works does not appear to be a present or future revenue scheme with potential for growth, and is actually a financial burden on the GLAM sector.”

So why don’t those museums who lose money allow people to use images for free?

Good question. Here are some reasons. First, UK museums like to stick together, and move slowly. Second, those whose jobs depend on licensing not unreasonably want to protect their jobs (you should see the chatter in image licensing forums - they don’t like AHN…). Finally, the UK government has insisted museums do more to raise their own revenue, and museums are wary of going against government instruction. 

So, the UK government is against the idea that public research and information should be available on an ‘open access’ basis? 

Not at all. The UK government is very keen on open access, or at least other parts of government outside the Department for Culture, Media and Sport (DCMS). Here’s the mission statement from UK Research and Innovation (UKRI), part of the Department for Science, Innovation and Technology, which funds universities; “UKRI supports the principle that the published outputs of publicly funded research should be widely and freely accessible to all, under conditions that allow for maximum reuse. Open access is central to UKRI’s ambitions as a key foundation for a research culture and environment that fosters excellent research and innovation.” In other words, if a publicly funded academic publishes something, it has to be open access so that as many people as possible can read it. 

So, shouldn’t a publicly funded museum follow the same principle?

If you ask me, yes!

Where does copyright come into this?

Copyright law is the glue which holds the whole image fee system in place. For example, let’s say you want an image licence of Turner’s Fighting Temeraire from the National Gallery to illustrate an article in an online journal. You can zoom into the painting in good detail on the NG’s website, but because the NG claims copyright in the photo you can’t use that image. So you have to buy a licence. The terms of that licence oblige you to caption the photo in your article as ‘© National Gallery’. This is designed to stop anyone else using the image you have paid for.

I thought copyright only lasted 70 years after an artist’s death. How does the National Gallery claim copyright in a Turner when Turner has been dead for so long?

Under the 1988 Copyright, Designs and Patents Act, the test for whether copyright could be acquired was relatively easily satisfied. It was essentially a ‘sweat of the brow’ test – that is, if “skill and labour” was required to take a photograph, then that photograph acquired copyright, even if it was a photograph of an artwork which itself was out of copyright (that is, an artwork in the public domain, made more than 70 years before the artist’s death). On the basis of the 1988 Act, UK museums and galleries claimed copyright in photographs of their collections, even of artworks made many hundreds of years ago. Hence all those © on museum websites.

So what’s changed in copyright law?

This is where it gets interesting. The ‘test’ for whether something gets copyright has evolved over the last decade or so. Now, UK copyright can only be gained if a work shows the ‘author’s own intellectual creation’. It is this creativity test which is relevant to museum images. Because if a photograph aspires, as all museum images must do, to faithfully reproduce an artwork, then it can have no element of creativity – it is simply a reproduction. 

In a case heard in the Appeal Court, THJ v Sheridan [2023] EWCA Civ 1354, Lord Justice Arnold wrote (paragraph 16) that for copyright to be acquired, “what is required is that the author was able to express their creative abilities in the production of the work by making free and creative choices so as to stamp the work created with their personal touch”. Moreover, “this criterion is not satisfied where the content of the work is dictated by technical considerations, rules or other constraints which leave no room for creative freedom”.

Although the THJ case was about computer software, not photographs, the principle of the creativity test for copyright still applies. In addressing what qualifies for copyright, Lord Justice Arnold was not making a media-specific point. Therefore, a faithful museum reproduction of an out of copyright artwork cannot qualify for copyright - even if great skill and intellectual effort went into capturing the best possible reproduction. I used to be a photographer, and while I know how tricky it can be to properly light a painting to get a good image, I can assure you it involves no creativity. The point of the exercise is to faithfully record someone else's creativity.

And in many cases now, especially for watercolours, drawings and prints, images are captured by a scanner, requiring little more than pushing a button. There is no room for creativity, or at least enough creativity for the resulting image to be 'stamped' with the photographer's 'personal touch', and thus acquire copyright.

Does this apply to photos of sculptures?

Likely not. Because with photos of 3D objects there is more scope for ‘creativity’, in terms of how you light and photograph the object. So for now we should assume this only relates to 2D artworks.

Why did the test for copyright change?

Mainly as a result of various cases in the European Court of Justice (ECJ), most notably the Infopaq case of 2014. The European view of what constitutes copyright has been changing over many years. In 2019 a new EU Copyright Directive came into effect, part of which, Article 14, strengthened the case for artworks losing copyright, and entering the public domain (for an explainer, see here from the European Copyright Society). Article 14 of the directive (2019/790) places all faithful reproductions of out-of-copyright works into the public domain, and was written with images of art in mind (as paragraph 53 of the explanatory text makes clear; “in the field of visual arts, the circulation of faithful reproductions of works in the public domain contributes to the access to and promotion of culture, and the access to cultural heritage.”)

Changes in EU law? What about Brexit?

The UK formally left the EU before the EU copyright directive had to be ratified - but the earlier ECJ judgements were incorporated into UK case law prior to Brexit taking effect. As Lord Justice Arnold makes clear in his ruling, the ‘new test’ for copyright has been in effect since 2014, it’s just that few in the UK really noticed (or wanted to notice). 

Including presumably none of the museums?

Yes, all except one – Tate. This is where the copyright issue gets even more interesting. For some years now (I have seen their internal emails) Tate has recognised the significance of the new, post-Infopaq copyright test in UK law. That’s why if you look really closely at their website and Tate Images small print (like their FAQ page about which caption to use for a Turner, as below), they do not claim copyright in photos of artworks which are themselves out of copyright. 

So if Tate does not claim copyright, how does it manage its image licensing?

By adopting to a supply-only model. Because Tate does not rely on copyright law to prevent use and re-use of their images, they only make low resolution images available online. This obliges anyone who wants to publish a photo of a work in Tate’s collection to pay for getting the high-res file. You then sign a ‘licence’ which places limits on how you can and can’t use that image (we’ll come back to this). 

Does that explain why the images on Tate’s website are so blurry, even of the greatest Turners and Constables in our national collection?

Yes. You wouldn’t know from this early Turner, for example, that he was specifically evoking changing weather and the concept of sublimity, in part through the presence of a little fishing boat.

So where does this new copyright ruling leave other UK museums?

A bit stuck. In theory, they could argue that their photos do still retain copyright, in the sense that they are indeed 'stamped with the photographer's personal, creative touch', but for that argument to hold, they would also have to concede that the professional high-res photo of a Turner you are paying to reproduce is not entirely a Turner. Moreover, since so many museum images are now made by scanning, the museum would have to argue on a case by case basis that copyright still exists, and demonstrate in each case what creative choices the photographer made.

But the chance for UK museums to argue the case on copyright is undermined by Tate having already conceded the point. Unlike Tate, most museums have been relying on a blanket application of copyright to prevent people re-using the high res images they have already (and to their credit) made available online. But now, if no copyright applies, any photograph of a 2D artwork which is itself out of copyright can be used freely.

Can these museums now revert to a Tate model, and remove access to the high-res images?

In theory, yes, but what a backward step that would be. 

Bendor, you are not a lawyer. Should we rely on any of this as legal advice?

No! But in the time since the THJ judgement appeared last November there have been a number of legal commentaries, and as far as I can tell the consensus is that faithful reproductions of out of copyright artworks either certainly or very likely do not have copyright (and probably haven’t for some years).

For a review by Prof. Eleonora Rosati, Editor of the Journal of Intellectual Property Law & Practice, see here. For a summary of the judgement by a UK law firm specialising in IP, Venner Shipley, see here (which notes that ‘where technical constraints or rules dictate the content of the work, leaving no room for creative freedom, there cannot be any intellectual creation, and therefore in such circumstances there is no originality’). 

Sarah Barker is a Partner and Head of the Art Group at international law firm Withers LLP, and has written about the judgement in Apollo, noting, ‘This ‘intellectual creation’ test is more demanding than the traditional skill, labour and judgement test, and it is going to be much harder for museums and institutions to successfully argue that their faithful images of antecedent works are protected by copyright. To this extent, the recent excitement from those vehemently opposed to museum reproduction fees is perhaps well founded. It is now established that there is a more demanding originality test to apply.’ 

And of course, here was the view of the UK’s Intellectual Property Office from 2021, before the THJ case from 2021; ‘it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as “original”. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.’

Here is the view of Sean Waterman, Head of Intellectual Property at Naomi Korn Associates (which works with museums to maximise revenue from image licensing); “Given the shift from copyright protection being dependent on the degree of ‘skill and labour’ involved in the production of a work to the exercising of ‘free and creative choices’ it is unlikely that a court of law in the UK would support assertions of copyright subsisting in images that are direct copies of public domain 2D artworks.” 

Douglas McCarthy is Head of Library Learning Centre at Delft University of Technology and has written about the case for Copyright Literacy; "In summary, the THJ v Sheridan ruling has profound implications for copyright policies in UK cultural institutions. It marks a shift from the traditional “skill and labour” basis for originality to a new standard that emphasises “free and creative choices.” This change challenges the longstanding practice of claiming copyright in digital surrogates of public domain works." 

My favourite response to the THJ ruling comes from BAPLA, the trade body for UK image libraries. It makes no attempt to refute the new copyright status of museum photos of historic artworks, and instead tries to bluff us by saying nothing in the ruling prevents museums from charging for images if they want to, which is true, and entirely beside the point - this discussion is about whether people need to pay. 

Finally, here is the response from Creative Commons, a US non-profit organization and which develops copyright licences to allow more liberal sharing of creative works legally. They call the THJ ruling a ‘game changer’; ‘This court case unlocks vast untapped potential for open culture to blossom in the UK cultural heritage sector. We are heartened that by offering enhanced legal certainty, this decision will give a boost to cultural heritage institutions to engage more deeply in the open culture movement and make these vast collections openly accessible to everyone.’

Ok, that’s enough legal backup. Talking of Creative Commons, why do UK museums still use Creative Commons copyright licences where there is in fact no copyright?

Many UK museums use Creative Commons licences to give the illusion they are committed to the open use of their images. But in practice such CC licences have always been a bit of a ruse. The British Museum uses CC licences (as below, on a Turner) to allow ‘non-commercial use’ of its images, but then defines ‘non-commercial’ far more tightly than Creative Commons does. Tate has been using Creative Commons licences on images which it concedes (privately and in the small print) do not have copyright, in addition to changing the wording of CC’s original text (again, not allowed by CC).

So should UK museums now stop using Creative Commons licences where no copyright exists?

Yes, and Creative Commons have made this clear. In their response to the THJ ruling, they say; ‘CC licenses should not be used by cultural heritage institutions (museums, libraries, archives, etc.) to release digital reproductions of public domain works, since licenses can only be used in connection with in-copyright content. […] Alas, a great many institutions still claim full copyright or use CC licenses to share faithful reproductions of public domain material, often against payment of a (steep) fee — this is particularly prevalent in the UK. […] On that basis, we are currently developing a set of guidelines to provide alternative design ideas and platform examples to cultural heritage institutions that wish to better share the digitized public domain cultural heritage material in their collections. Stay tuned for their release soon!’

And, just as I was completing this Q&A, I got some great news from Tate. They said in a statement to me: 

"RE Creative Commons: A huge number of images are tagged in this way on our website, including thousands of images of copyright-protected archive items (where we have the artist’s/estate’s permission) and Tate’s copyright-protected photographs of copyright-expired sculptures and other three-dimensional works. Where photographs of copyright-expired two-dimensional works are also tagged in this way, we are working through plans to update the relevant webpages, but this does not affect Tate Images’ ability to license these photographs as they always have done."

In other words, Tate will be removing Creative Commons statements on their website for non-copyright images. This means those images are now in the public domain - it's a wonderful moment for spreading awareness of British art. It's true, that if you want a high-res image of Tate's pictures, you will still need to pay. But we must applaud Tate for making this important, if belated change. 

What is the UK government doing about the new copyright status?

I recently had a meeting with the government, which (I thought) went well – all I can say for now is, watch this space.

For art historians and authors, what’s the next step?

Tell people. Now is the time for us to be pro-active. If there is no need to pay for a licence, where a high-res image is available online, then do not pay. UK museums have never taken anyone to court to test the copyright law on their images (for fear of losing) and they certainly won’t now. Museums will try and frighten you with language about ‘owning’ the image, but absent copyright, in a digital image circulating online there is nothing to own. An image in the public domain is free to use, end of story. It’s especially important not to let publishers hassle you into paying for a licence, just to cover themselves against any perceived risk. Obviously, if an artwork itself is still in copyright, then you still need a licence. 

Lots of museum websites have tricky zoom pages which make it impossible to save a whole image. Don’t we still have to ask them for a whole digital file?

Have you tried “Dezoomify”? It even works on Google Arts and Culture. By the way, note that you won’t find any © symbols on photos of historic artworks on the Google site – under US law, there is no copyright in such images either.

Should we still credit the institution?

Of course! This is essential - to always credit the owning institution, so people know where the original artwork can be seen.

Should we make a donation to the museum where possible? 

Yes! If you can afford to, please do. Nothing in the campaign against image fees is intended to cause museums to lose money. In fact, by taking out the loss making historic artworks from their licensing portfolio, and concentrating instead on in-copyright and 3D objects, museums will likely find their licensing profitability increases. 

*The first to raise the issue strongly and effectively was the editor of the British Art Journal, Prof. Robin Simon. Many others have supported the campaign, including the signatories to the first Times letter we organised in 2017, and along the way fellow campaigners have included Dr Richard Stephens, editor of the Walpole Society Journal, Dr Andrea Wallace of the University of Exeter, Douglas McCarthy of Delft University, Prof. Simon Tanner of Kings University, and crucial guidance and help in Parliament has been given by Lord Freyberg. 

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